Friday, May 05, 2017

Justice Kennedy's retirement: why now? What next?

Two items:

First: there's a lot of buzz that Justice Anthony Kennedy will retire soon, perhaps in the next two months. I linked just one item, but if you do a web search, you'll see a lot more.

Second: In First Things, George Weigel predicts that if the next vacancy on the U.S. Supreme Court means the replacement of a pro-abortion justice (e.g., Justice Kennedy!), all hell will break loose. What happened with Gorsuch will be a walk in the park, compared to the political tactics and rioting in the streets.

As I think about all this, wondering why Justice Kennedy would choose to step down now, and what the opposition would be aiming at accomplishing in all this, some thoughts occur to me:

- He might have noticed the Republicans have only a 52-48 majority in the Senate right now, with several Republican "moderates" making a decisive margin. After 2018, the odds are, the margin will be greater. So he might figure this maximizes the chance of his successor being a more moderate Republican nominee -- i.e., just like him.

- The Democrats know they can't prevent President Trump from filling the seat; but there are advantages to bogging things down. If, as often happens, Kennedy's resignation only takes effect once his successor is named, then dragging things out keeps Kennedy around; it's not a vacancy as with Scalia. And, while they don't like how Kennedy votes on some things, they really like what he does on abortion and redefining marriage, and all that flows from those positions. 

- But even if Kennedy were to quit outright, that puts us back at 4-4 ties on abortion cases, at best; and on cases where Kennedy tends to be conservative, that means a gain for the left. 

- While the Democrats obviously would be aiming to keep their own constituencies happy (i.e., the pro-abortion lobby, the LGBTetc. community, trial lawyers, etc.), they would have other goals in making this fight really ugly:

a) Delay, delay, delay; not only of a confirmation, but of anything else Trump and the GOP want to pass.

b) They might get lucky and "bork" the next nominee. They only need switch a handful of "moderate" Republicans, such as: Collins of Maine, Murkowski of Alaska, and McCain of Arizona. There are a couple more who might waver.

c) The anticipation of all this might induce Trump to back off a little, at least from the most fire-breathing candidates for the high court.

d) They might be able to make some other deal with Trump. Dangerous for Trump, but he might be tempted nevertheless.

- But then there's this: what effect does all this have on Chief Justice John Roberts? Everyone assumes he will be a vote to overturn Roe; but he famously didn't overturn Obamacare; he found a way to salvage it. Does he want to be the 5th vote that causes so much turmoil?

Honestly, I think Roberts is an uncertain vote to overturn Roe. Maybe he would "hollow it out" as some have said; or maybe he waits until there are six votes -- which means replacing Breyer or Ginsberg. My guess is Ginsberg will do anything to prevent Trump naming her successor.

All this is yet another reason why we can't just wait and rely on the Supreme Court on these things. My group, the National Pro Life Alliance, has been working to advance the Life at Conception Act, (S. 231/H.R. 681 and H.R. 586) which overturns Roe the way the Roe v. Wade decision said it could be: by declaring unborn children persons under the 14th Amendment. In authoring the Roe holding, Justice Blackmun said that if the personhood of the unborn child were established, the case for abortion being included in the so-called right of privacy "would collapse" (Blackmun's own words). Yet he said the court couldn't answer whether unborn children were persons. Who can? The 14th Amendment says Congress can enforce the amendment. So that's the approach.

Is this a sure thing? Of course not; but neither is the next appointment strategy. And the constitutional amendment route is the hardest of all. But one of the many advantages to pursuing the Life at Conception Act is that every year, we're keeping the pressure on Congress, and we're getting more and more members of Congress to commit to cosponsoring the legislation. That means not only more support for repeal of Roe; it means more support for every other pro life legislation that might come forward. And, in the Senate, it gives us a stronger position to support a solid nominee to the Supreme Court, whenever it happens (as well as more Senators who might push back if Trump names someone too weak, as in President Bush's ill-fated choice of Harriet Meirs).


Anonymous said...

Excellent outline of the situation. I believe we are headed toward outright wayfarer in our streets and this could be the match to light the fire. If this happens, I look for a big backlash at the ballot box calling for law and order with the Democrats taking huge losses.

Anonymous said...

Your analysis is excellent and it will be interesting to see how this plays out. The Democrats have been on a rampage blocking everything the Trump administration has done so far, and this will only intensify their backlash. I wonder if Justice Kennedy has a list of preferred candidates? I am not really sure if those justices are permitted to barter with a president? Even a moderate appointed by the Republicans is better than a leftist Democrat nominee. While a moderate might not overturn Roe vs. Wade, they might be able to promote a "Cultural Shift" away from the one the Democrats have been promoting for the last 30 years. Ultimately a shift towards a true culture of life would defeat Row vs. Wade. You are right in stating that we can't wait for a Supreme Court to overturn a law, and that political action like NPRA is still needed. Interesting post, there is a lot here to think about.

John F. Kennedy said...

Father, I stated for years that all Congress needed to do was to state, in a one line law, "The United State recognizes that human life begins at conception and is therefore a human person" . Once the Federal government define the term by statute, all other interpretations by Federal courts and agencies should cease. This is like the US Post office authority recognizing Kris Kringle in “Miracle of 34th Street”. BTW, this should be very easy with a full Republican Congress and White House.